Posted with permission of TRIAL (March 2007) TRIAL • Fighting preemption • March 2007 • Volume 43, Issue 3 Copyright American Association for Justice, formerly Association of Trial Lawyers of America. Why preemption proponents are wrong Corporate defendants’ claim that the effect of state tort actions is equivalent to state positive law has no merit. The reality is that consumer protection can be guaranteed only when tort remedies work in tandem with federal regulation. BRIAN WOLFMAN he basic idea of federal preemp- because, for instance, these products seeking damages on the ground that the tion is easily stated: It is a con- have been approved for marketing by a plaintiff’s injuries were caused by the Tstitutionally mandated principle federal agency harms both the injured device’s defective design or inadequate that demands that federal law trumps people and society generally. labeling is also preempted. state law when the two confl ict or in In other words, is the effect of posi- the rare instances when a federal law is An unsound theory tive law (in this case, a state’s positive so comprehensive that there’s no role law requirement that a product not be The theoretical basis that defendants left for state law to fi ll. But in practice, marketed) the same as a jury’s damag- offer for preemption of state tort law courts have often had diffi culty applying es verdict (in this case, a state’s award is not fi rmly established in preemption the principle. of damages based on a design defect)? doctrine. I don’t mean the detailed com- For plaintiff lawyers, preemption is This is an important question because an ever-present worry. When your cli- parison between a particular federal reg- defendants have relied heavily on the ent has been injured by a defective car, ulatory regime and the state tort claims argument that positive law and com- truck, medical device, boat, tobacco asserted in a particular case. There, as mon law damages exert the same regu- product, pesticide, or mislabeled drug, the case law shows, the devil is in the latory effect and that when positive law or has been victimized by a bank or details.2 I am referring to defendants’ ef- is preempted, common law should be as other lending institution, the defendant forts to equate the effect of tort law—of well. will probably assert that federal law pre- empts your client’s state law damages Defendants have relied heavily on the argument claim. You can expect this argument no matter how weak the federal regulatory that positive law and common law damages exert scheme or how attenuated the connec- the same regulatory effect and that when positive tion between that scheme and the harms your client suffered or the state law law is preempted, common law should be as well. duties under which your client seeks a remedy.1 state law damages actions—with posi- Does the Supreme Court buy into But defendants’ and tort “reformers’” tive state regulation. this equivalence between positive state pro-preemption arguments do not refl ect For example, assume that a fed- regulation and a jury’s award of damag- current preemption doctrine as estab- lished by the courts. A common—and eral agency has approved the market- es? To put it mildly, the Court has been false—argument for preemption, for ex- ing of a particular medical device as it unpredictable. ample, is that state tort law necessarily is currently designed, manufactured, Its fi rst statement on this topic was interferes with federal regulatory objec- and labeled and that a state’s ban on in the labor law context, in San Diego tives. the marketing of this device would be Building Trades Council v. Garmon.3 Moreover, preemption of state tort preempted on the ground that it would Garmon involved a business’s attempt law is a bad idea. Immunizing the mak- confl ict with federal law. The question, to prevent union picketing by bringing a ers of products that cause injury simply then, is whether a state law tort suit suit under California law seeking an in- junction and damages. In an early stage In 1992, the Court seemed to change to warn. of the litigation, the Supreme Court ruled course. A plurality opinion in the fa- In responding to the tobacco in- that the injunctive relief was preempted mous tobacco liability case, Cipollone dustry’s arguments that the 1965 act by the National Labor Relations Act.4 v. Liggett Group, Inc., relied on the preempted state law damages claims The Court also rejected the attempt to language from Garmon quoted above based on the industry’s failure to warn, impose damages under California law: and concluded that the Public Health the Court seemed to reject the Garmon Cigarette Smoking Act of 1969, which viewpoint as a general, overarching jus- [State] regulation can be as effectively requires specifi c warnings on cigarette tifi cation for preemption: “[T]here is no exerted through an award of damages as packages, preempted some, but not all, general, inherent confl ict between feder- through some form of preventive relief. tort claims based on a failure to warn al preemption of state warning require- The obligation to pay compensation can 8 be, indeed is designed to be, a potent about the dangers of smoking. ments and the continued vitality of state 11 method of governing conduct and control- This section of the Cipollone deci- common law damages actions.” ling policy. Even the states’ salutary effort sion was premised in part on particular The internal tension in Cipollone carried over to a 1996 medical device The Supreme Court has said it is ‘perfectly rational’ preemption case, Medtronic v. Lohr.12 A plurality opinion, again authored by for Congress to preempt state positive law but not Justice Stevens, suggested that a ratio- nal Congress could (and did) treat state common law claims, which ‘perform an important common law damages actions differ- remedial role in compensating accident victims.’ ently from positive state law,13 while the dissenters and one concurring justice generally equated the two.14 to redress private wrongs or grant com- language of the 1969 act that purported- pensation for past harm cannot be exerted ly pointed in the direction of preemption to regulate activities that are potentially of common law duties.9 But it also relied Divining congressional subject to the exclusive federal regulatory intent scheme.5 on Garmon’s claim that damages liabil- ity can have, and is intended to have, the Although the Supreme Court’s con- Garmon was not a products liability same effect on the defendant’s future fusion on this score runs deep, it is im- case, and federal labor laws, unlike most conduct as would positive state regula- portant to mention three rulings from federal statutes that regulate consumer tion. Since then, defendants in products the Court that directly challenge the products and services, authorize mone- liability and similar cases have relied on premise that positive law and damages tary remedies. Garmon thus presented a this language from Garmon and Cipol- liability are the same for preemption different situation from the medical de- lone ad nauseam, in an effort to show purposes. First, in Goodyear Atomic vice example above because neither the that state tort law and state positive law Corp. v. Miller, the Court considered relevant federal regulatory statute nor have the same regulatory effect—that is, whether an Ohio administrative agency any other federal law provides a means that they are inherently the same. could, consistent with federal preemp- to compensate people harmed by medi- But not so fast. In the majority por- tion principles, award additional work- cal devices.6 tion of the Cipollone decision—which ers’ compensation benefi ts based on Nevertheless, it is easy to see why addressed the preemptive effect of an violations of state safety standards at preemption-seeking defendants rely so earlier version of the cigarette-labeling a federally owned, privately operated 15 heavily on Garmon. Its exclusive focus law (the 1965 Federal Cigarette Label- nuclear production facility. on tort damages as a regulatory, rather ing and Advertising Act)—just a few The Court held that the additional award was not preempted. Acknowledg- than a compensatory, tool is useful to paragraphs above the endorsement of ing that state positive law safety require- defendants seeking to equate positive Garmon, the same justice who wrote ments might be preempted, the Court law with tort law. the plurality opinion, Justice John Paul viewed damages liability as fundamen- But Garmon arose in a context quite Stevens, said something quite different: tally different: different from modern tort law, and even that the 1965 act, because of its particu- after Garmon, the prevailing assumption lar wording, preempts “only positive Congress’ reluctance to allow direct state in the courts was that regulatory stan- enactments by legislatures or adminis- regulation of federal projects says little dards and state compensation schemes trative agencies that mandate particular about whether Congress was likewise concerned with the incidental regulatory 7 occupied separate spheres. Indeed, until warning labels” and “not . common effects arising from the enforcement of a the 1990s, the Supreme Court had never law damages actions.”10 The Court held workers’ compensation law, like Ohio’s, held a state law tort claim preempted that although the 1965 act preempted that provides an additional award when the by federal regulation, at least not where state positive law labeling requirements, injury is caused by the breach of a safety regulation. The effects of direct regula- federal law itself did not provide a right it did not preempt any state damages ac- tion on the operation of federal projects of action for damages.